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Issue #2/2022 13 January 2022

New This Week Case(s) of the Week PP v. MOHAMMAD FADIL HANAPI MD SAHIDEK [2022] 1 CLJ 469 JUDICIAL QUOTES  Latest Cases Legal Network Series CLJ 2022 Volume 1 (Part 3) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

PP v. MOHAMMAD FADIL HANAPI MD SAHIDEK [2022] 1 CLJ 469
HIGH COURT MALAYA, MUAR
AWG ARMADAJAYA AWG MAHMUD JC
[APPLICATION FOR REVISION NO: JB-43-3-08-2021]
14 OCTOBER 2021

CRIMINAL PROCEDURE: Revision - Application for - Application for revision of decision of Sessions Court Judge ('SCJ') ordering trial to be heard de novo - Whether order had legal ramifications - Whether SCJ indicated reasons for order - Meaning of 'exercise of discretion' - Whether fulfilled - Whether Sessions Court may alter its decision after finding prima facie case had been made out by prosecution - Whether change of judge entailed order that trial be heard de novo - Whether justice of case demanded case be heard de novo - Whether order of SCJ improper and illegal - Whether ought to be set aside

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"In our view, it is settled law based on the authorities cited to us by learned counsel for the appellant in his submission that the prosecution has discretion whether to call any particular witness, but such discretion is subject to two limitations, viz (i) the discretion must be exercised with due regard to considerations of fairness and good faith; and (ii) the witnesses who had been investigated by the police and from whom the statements have been recorded must be offered to the defence." – per Mohd Zawawi Salleh FCJ in Rosli Yusof v. PP [2021] 9 CLJ 681

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Legal Network Series

[2020] 1 LNS 97	CNI22 ENGINEERING (M) SDN BHD & ANOR v. CHIN CHEE KEONG There is no basis for a shareholder to depart from the terms of the shareholders' agreement by relying on any other documents, more so when all the parties to the shareholders' agreement have agreed in clear terms that the shareholders' agreement constitutes the entire agreement between them and that the terms of the shareholders' agreement shall prevail over any other documents. COMPANY LAW: Shares - Shareholders' agreement - Effect of - Construction of - Entire agreement clause - Plaintiff alleged defendant was holding shares under trust for plaintiff - Whether shareholders' agreement should be construed in a commercially sensible manner - Whether parties are bound by terms of shareholding agreement - Whether shareholding could be diluted without unanimous decision of board of directors - Whether shareholders' agreement imply any trust - Whether loan given by plaintiff to defendant could confer on plaintiff any equitable right to defendant's shares - Whether plaintiff entitled to file separate suit against defendant to recover loan - Whether there was breach of ss. 67(1) and 133(1) Companies Act 1965 For the plaintiffs - Azmi Abdoll Aziz, Wong Kong Fatt & Lim Hoon Shi; M/s KF Wong & Lee For the defendant - Chai Yow San; M/s Chai Yow San & Co
[2020] 1 LNS 98	OPES ENGINEERING SDN BHD v. CDAH CONSTRUCTION SDN BHD; AIR KELANTAN SDN BHD & ANOR (GARNISHEES) An adjudication decision is only temporary in effect. It cannot be enforced in the absence of an enforcement application or when there exist applications to set aside and stay the execution of the adjudication decision. As a result, the adjudication sum cannot be considered a debt due or accruing due within the meaning of O. 49 r. 1(1) of the Rules of Court 2012 to commence garnishee proceedings. CIVIL PROCEDURE: Execution - Garnishee proceedings - Application to make absolute ex parte garnishee order nisi - Adjudication decision made requiring garnishee to pay judgment debtor - Garnishee proceedings commenced by judgment creditor premised on adjudication sum - Garnishee filed a suit to set aside adjudication decision and obtained stay of adjudication decision - Judgment debtor yet to file enforcement application - Whether judgment creditor entitled to garnish adjudicated sum - Whether adjudication decision could be considered debt due or accruing due from garnishee to judgment debtor - Whether garnishee would suffer injustice if garnishee order nisi was made absolute - Rules of Court 2012, O. 49 r. 1(1) CONSTRUCTION LAW: Adjudication - Adjudication decision - Nature and effect of adjudication decision - Whether adjudication decision only temporary in effect - Whether adjudication decision could be enforced without filing enforcement application pursuant to s. 28(1) and (2) of Construction Industry Payment and Adjudication Act 2012 - Whether adjudication decision could be enforced pending hearing of application for setting aside of adjudication decision and stay of adjudication decision For the plaintiff - Lim Sze Han; M/s Han & Partners For the 1st Garnishee - Wan Nor Idayu Wan Jusoh Garnishee; M/s Adli Aznam & Akram
[2020] 1 LNS 99	RAHBAR YADOLLAH FATHI v. PP 1. A trial judge is vested with wide powers to intervene and ask witnesses questions for clarification under s. 165 of the Evidence Act 1950. Such intervention would not amount to the judge taking over the prosecution or the defence counsel's duty. 2. Mere absence of any photograph depicting the process of marking the exhibits as well as failure to record the marking of the exhibits in the search list will neither affect the identity of the exhibits nor break the chain of evidence. CRIMINAL PROCEDURE: Appeal - Appeal against conviction - Trial judge posed question to various witnesses during trial - Trial judge intervened cross-examination of prosecution and asked questions from witnesses - Whether questions posed were mere clarification - Whether questions posed by trial judge caused prejudice to accused - Whether trial judge fallen into error in descending into arena of dispute - Whether trial judge had exceeded limits of judicial intervention CRIMINAL PROCEDURE: Exhibits - Break in chain of evidence - Offence of trafficking dangerous drugs - Identity of drugs - Capsules containing drugs were excreted through body of accused on several occasions at different places - Markings of capsules not recorded in search list - Absence of photographs showing process of marking of capsules - Allegation that signature of accused on search list appeared to be different - Whether there was break in chain of evidence regarding handling of capsules - Whether there was doubt in identity of exhibits EVIDENCE: Judge - Power to put questions or order production - Clarification - Whether trial judge vested with wide power to ask questions from witness - Evidence Act 1950, s. 165 For the appellant - V Jayamurugan; M/s Jayamurugan Vadivelu & Partners For the respondent - Gan Chee Keong, Deputy Public Prosecutor; Attorney General's Chambers
[2019] 1 LNS 1744	KANNAN SUPRAMANIAM lwn. MENTERI DALAM NEGERI, MALAYSIA & YANG LAIN Peruntukan s. 6 Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 tidak menetapkan sebarang tempoh masa untuk Menteri Dalam Negeri menjalankan budi bicara dan tanggungjawabnya dalam mengeluarkan perintah tahanan. Apabila Menteri tidak mengeluarkan perintah tahanan sejurus selepas menerima laporan penyiasatan dan laporan inkuiri, maka Menteri tidak boleh dikatakan telah bertindak secara mekanikal dan arbitrari dalam menjalankan budi bicaranya. PENAHANAN PENCEGAHAN: Perintah tahanan - Habeas corpus - Tahanan bawah s. 6(1) Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 ('Akta 1985') - Menteri Dalam Negeri mengeluarkan perintah tahanan enam hari selepas menerima laporan lengkap penyiasatan dan laporan pegawai inkuiri - Sama ada terdapat kelewatan dalam pengeluaran perintah tahanan - Sama ada Menteri terikat dengan sebarang tempoh masa untuk menjalankan budi bicara dan tanggungjawabnya bawah peruntukan s. 6 Akta 1985 - Sama ada berlaku sebarang ketidakpatuhan prosedur - Sama ada Menteri telah bertindak secara mekanikal dan arbitrari semasa mengeluarkan perintah tahanan Bagi pihak pemohon - Sundarajan Sokalingam; T/n Sundarajan & Associates Bagi pihak responden - Siti Hajar Mat Radzi, Peguam Persekutuan; Pejabat Penasihat Undang-Undang Kementerian Dalam Negeri
[2019] 1 LNS 1746	LIEW CHEE HENG lwn. JANESSA TANG SOO HUEY Usia tua ibubapa suatu pasangan bukanlah satu faktor bagi menilai kemampuan mereka dalam meneruskan penjagaan anak terutamanya apabila tiada sebarang pertikaian atau bantahan yang telah dibuat sebelum pemfailan permohonan untuk hak penjagaan anak tersebut. UNDANG-UNDANG KELUARGA: Anak - Penjagaan - Permohonan untuk hak penjagaan interim anak oleh suami - Anak perempuan berusia kurang daripada 4 tahun - Anak dijaga oleh ibubapa suami sejak lahir - Sama ada usia muda anak dipertimbangkan dalam menentukan hak penjagaan - Sama ada pertukaran hak penjagaan akan mengganggu kehidupan anak - Sama ada usia tua ibubapa suami faktor untuk menilai kemampuan suami dalam meneruskan penjagaan anak - Sama ada kesesuaian untuk menjaga anak oleh isteri telah dicabar - Sama ada anggapan bawah s. 88(3) Akta Membaharui Undang-Undang (Perkahwinan dan Perceraian) 1976 telah disangkal Bagi pihak perayu - Tam Yuen Hung; T/n Low & Partners Bagi pihak responden - Su Keong Siew & Pierre Chuah Lee Yan; T/n KS Su & Mah

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CLJ 2022 Volume 1 (Part 3)

Given the clear wordings of s. 3(3) of the Law Reform (Marriage and Divorce) Act 1976 ('LRA') and the plain meaning of word 'or', the LRA is not applicable to a Muslim. The LRA does not merely govern monogamous marriages registered under the LRA, but more than that, it is a personal law for non-Muslims. Muslims have a different set of personal laws. If one is to read s. 3(3) only in respect of marriage and divorce, without regard to art. 121(1A) of the Federal Constitution read with art. 8(5)(a) of the same, the clear demarcation between the personal laws of Muslims and non-Muslims in Malaysia will be in a state of disarray.
AJS v. JMH & Another Appeal [2022] 1 CLJ 331 [FC]

• SUBJECT
• CORAM
• COUNSEL

If there is a point of law which requires serious discussion, an objection should be taken on the pleadings and the point set down for argument under O. 33 r. 2 rather than going under O. 18 r. 19 of the Rules of Court 2012. An action may involve many disputes on the facts as well as on the law; some more complex than the others. The determination of a preliminary point in one way may make it unnecessary for other more complex issues of fact or law to be decided, thus resulting in a saving of time and expense of a protracted trial on those issues.
Azhar Harun v. Dato’ Muthukumar Ayarpadde & Ors [2022] 1 CLJ 390 [HC]

• SUBJECT
• CORAM
• COUNSEL

The application to replace the administrator of a deceased's estate pursuant to ss. 89 and 90 of the Probate and Administration Ordinance (Sabah) (Cap 109) was allowed because sufficient cause was established, in that: (i) non-citizenship of the applicant is not a bar to his appointment as an administrator; (ii) despite extension of time granted, the administrator still failed to distribute the assets until the date of this decision; (iii) the administrator was involved in several transactions to misappropriate the estate funds; and (iv) the commencement of the movement control order ('MCO') due to Covid-19 pandemic could not justify the delay in carrying out the statutory duty as an administrator as he was appointed as such long before the start of MCO.
Daljinder Singh v. Amardeep Singh Dalj inder Singh; Sharandeep Singh Daljinder Singh (Intervener) [2022] 1 CLJ 419 [HC]

• SUBJECT
• CORAM
• COUNSEL

An advocate and solicitor who has been engaged by a party in a matter, and subsequently after the expiry of his retainer thereof has been engaged by second party for a matter against the said first party, should continue to keep confidential any confidential information that he has access to or obtained while representing the said first party. This said, the risk of disclosure should be taken as eliminated should such an advocate and solicitor, or his firm, provide an undertaking to have the documents in respect of the file created for his previous engagement deleted, and the physical file that was kept in the storage facility destroyed in the presence of the first party or his representative.
Malaysia Offshore Mobile Production (Labuan) Ltd v. PCPP Operating Company Sdn Bhd & Ors [2022] 1 CLJ 440 [HC]

• SUBJECT
• CORAM
• COUNSEL

A Magistrate or Sessions Judge, in proceeding to hear a criminal trial which has been partly heard, has a complete discretion under s. 261 of the Criminal Procedure Code to either hear the case de novo or continue from the point where it has been left by his predecessor, albeit that the discretion must be properly and reasonably exercised. Where, however, a trial under s. 376(1) Penal Code has been fully heard by a previous Sessions Judge except for the parties' submissions at the end of the defence case, as happened here, it might not be proper nor advisable for the succeeding Sessions Judge to have ordered a de novo trial, considering the multiple adverse repercussions that such a new trial would entail and the fact that the court could always view the full video recording of the trial if needs be; more so when no reason was given for the order, as the absence of reason may always attract the inference that the discretion has been wantonly or callously exercised.
PP v. Mohammad Fadil Hanapi Md Sahidek [2022] 1 CLJ 469 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. LIMITATION OF THE FREEDOM OF SPEECH IN MALAYSIA ^{[Read excerpt]}
   by Siti Munirah Edward^[i] Nurul Akmal Azerin^[ii] Nabeel Mahdi Althabawi^[iii] [2022] 1 LNS(A) iii

[2022] 1 LNS(A) iii



MALAYSIA

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LIMITATION OF THE FREEDOM OF SPEECH IN MALAYSIA

by
Siti Munirah Edward^[i]
Nurul Akmal Azerin^[ii]
Nabeel Mahdi Althabawi^[iii]

ABSTRACT

The right to freedom of speech is universal, but it is interpreted differently in different countries. In Malaysia, freedom of speech is protected under Article 10 covers citizens' right to hold their own opinions and express them freely without government interference. Thus, this provision is vital in developing a democratic society in this country. However, freedom of speech is not an absolute right as it is subject to certain restrictions. These restrictions play a role in preventing conflicts with national security, public order, public health, and public morals. Even so, some may argue that these restrictions deny their freedom of speech as they are still subjected to limitations when expressing their opinion. In this paper, we will discuss how these limitations in the Constitution can balance the liberty of the citizen and the harmonisation of society. This paper analyses the freedom of speech in Malaysia regarding the legislation related to it and its compatibility with the concept of freedom according to jurists. This paper concludes that as much as freedom is a granted right, there must be a limit to it, especially when it involves society as a whole.

. . .

[i][ii] Third Year, Faculty of Law, National University of Malaysia (UKM).

[iii] Senior Lecturer, Faculty of Law, National University of Malaysia (UKM).

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2. TO WHAT EXTENT SHOULD THE COURT CONSIDER A PATIENT'S WISHES AND FEELINGS WHEN DETERMINING THE PATIENT'S BEST INTERESTS?* ^{[Read excerpt]}
   by Lim Shu Fen** [2022] 1 LNS(A) iv

[2022] 1 LNS(A) iv



SINGAPORE

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TO WHAT EXTENT SHOULD THE COURT CONSIDER A PATIENT'S WISHES
AND FEELINGS WHEN DETERMINING THE PATIENT'S BEST INTERESTS?*

by
Lim Shu Fen**

The Mental Capacity Act (Cap 177A) makes it clear that a decision maker making a decision on behalf of a mentally incapacitated person (P) must consider P's wishes and feelings. This article aims to illustrate the position in Singapore and in the United Kingdom and to what extent the Court will take P's wishes and feelings into account when making a decision on behalf of P. Such a decision would have to be in P's best interests and the Court will usually look at all factors in totality; as such, the weight to be place on P's wishes and feelings differs on a case by case basis.

INTRODUCTION

The Mental Capacity Act (Cap 177A) (MCA) places an obligation on the decision maker to act in the Patient's (P's) best interests. Section 6(7) of the MCA states the decision maker must, as far as is reasonable ascertainable, consider:

a. P's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity);

b. P's beliefs and values that would be likely to influence his decision if he had capacity; and c. Other factors that P would be likely to consider if he were able to do so.[1]

. . .

*The article was originally published in the October 2021 issue of the Singapore Law Gazette, the official publication of the Law Society of Singapore. Reproduced with permission.

**On behalf of Probate Practice Committee 2021.

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